1. The just construction to be given to the count to which the defendants have demurred is not free from difficulty. But whether viewed as alleging a contract of guaranty *264made subsequently to the sale, or the ordinary contract of guaranty in pursuance of the understanding and agreement upon which the goods were entrusted to the defendants for sale, the demurrer should have been sustained; for, in either view, the contract declared on is a contract of guaranty only, and contingent upon the default of the vendee. In an action upon such a contract, it is necessary to allege and to prove an application to the vendee to perform the contract, and a refusal or failure on his part to comply. The rule is clearly stated by Lord Ellenborough in Morris v. Cleasby, 4 M. & S. 574: “ The guarantor is to answer for the solvency of the vendee, and to pay the money, if the vendee does not. On the failure of the vendee, he is to stand in his place, and to make his default good. Where the form of action makes it necessary to declare upon the guaranty, application to the principal must be stated on the record. In all cases it must, if required, be proved, though in the case of a foreigner very slight evidence may be sufficient.” See also Thompson v. Perkins, 3 Mason, 232; Bickford v. Gibbs, 8 Cush. 154.
2. The instructions requested by the defendants’ counsel, in relation to the withdrawal of the offer or agreement to accept the plaintiff’s draft, should have been given to the jury. If the letter of the defendants of October 29th 1856 reached the plaintiff before the second draft was presented by Jackson to the defendants for their acceptance, Jackson having no interest in the draft, and acting only as the agent or messenger of the plaintiff to get the acceptance of the defendants, the withdrawal of the offer was made before the plaintiff had signified his assent to the proposition made by the defendants to accept. The mere writing of the draft, so long as it remained in the plaintiff’s possession or under his control, did not make such assent. If, when the draft was presented by his agent, he knew the offer to accept it had been withdrawn, the defendants clearly were not bound to accept.
The difficulty with the instructions actually given by the pre siding judge is not that, as applied to the state of facts suggested by him, they do not state the law correctly, but that they *265do not meet the calls of the evidence. They proceed upon the ground that the negotiations of the parties were conducted on both sides by written correspondence. The report does not so show. Though the defendants wrote directly to the plaintiff at Portland, the negotiations on the part of the plaintiff were principally through their agent, Jackson, at Boston. The proposition to accept the draft of the plaintiff, if he allowed the five per cent, commission, was made orally to Jackson. The defendants contended that before any draft was presented in pursuance of this offer, the offer was withdrawn by letter received before the draft whs presented or the assent of the plaintiff to their proposition otherwise given. And they clearly had the right to have the jury instructed what would be the result if they found such to be the fact.
3. If the agreement of the defendants was to accept merely for the accommodation of the plaintiff, the rule as to damages given by the judge was erroneous. The rule should have been given substantially as requested by the defendants. Upon the facts reported, however, it is difficult to understand how such a question could arise; to see what evidence there is that the draft was to be accepted for the accommodation only of the plaintiff. Exceptions sustained.